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Liable for texting a driver? Not new, not remarkable, and what else?

The recent case of Kubert v. Best, (August 27, 2013) in New Jersey has caused a great stir:  The facts of the case are, essentially, that the plaintiffs were “grievously injured by an eighteen-year-old driver who was texting while driving and crossed the center-line of the road.”  New Jersey prohibited texting while driving at the time (N.J.S.A. 39:4-97.3).  The underlying claims against the driver were settled, but the Plaintiffs appealed the dismissal of their claims “against the driver’s seventeen-year-old friend who was texting the driver much of the day and sent a text message to him immediately before the accident.”  In its opinion New Jersey’s three-judge Court of Appeals panel decided, with a concurring opinion but no dissenting opinion, that “when the sender ‘has actual knowledge or special reason to know,’ … from prior texting experience or otherwise, that the recipient will view the text while driving, the sender has breached a duty of care to the public by distracting the driver.”  Contrary to popular belief, the texter was not held liable in this case, and the dismissal of claims against her was upheldThis despite the fact that :

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